Mirza v. Doe 1

Background

Dr. Muhammad Mirza and Allied Medical and Diagnostic Services, LLC sued nine defendants identified as John Doe defendants and associated in the caption with abbreviated user names. The plaintiffs alleged that the defendants posted harassing and defamatory reviews on Yelp.com, including statements accusing Dr. Mirza of being a fake doctor and using fake products. They alleged that patients or prospective patients consequently refused to begin or continue doing business with them.

Before the parties’ required discovery conference, the plaintiffs filed an ex parte motion for permission to conduct expedited discovery. They sought to issue a third-party subpoena to Yelp.com or other third-party providers to learn the defendants’ identities. Mirza’s declaration stated that he resided in New Jersey, was AMDS’s sole member and principal, and believed the defendants had directed the reviews. The plaintiffs also asserted that the defendants were not New Jersey citizens, had posted reviews on pages identifying New York locations for the plaintiffs’ business, and had caused harm in New York.

Legal standard

Federal Rule of Civil Procedure 26(d)(1) generally bars discovery before the parties confer as required by Rule 26(f), unless a rule, stipulation, or court order permits earlier discovery. The court said expedited discovery is evaluated under a flexible reasonableness-and-good-cause standard, with especially careful review when the request is made without notice to the opposing side.

The court also described factors used when a litigant seeks identifying information from an internet service provider. Those factors include a concrete showing of a possible actionable-harm claim, a specific discovery request, the lack of alternative ways to obtain the information, the importance of the information to advancing the claim, and the person’s expectation of privacy.

Court’s analysis

The court found the plaintiffs’ proposed discovery request inadequate. Although the plaintiffs referred to Yelp.com and “other third-party providers,” they did not identify the other providers, explain what those providers provide, or specify the information they wanted. They also did not explain what Yelp.com was or provide evidence that Yelp.com possessed information that could identify the defendants.

The court further found that Mirza did not explain what the defendants’ Yelp.com profiles were or how he knew about them. The proposed order improperly attached to the motion would have authorized third-party subpoenas to identify the defendants without naming the information sought or the third parties to be subpoenaed. The court characterized that proposal as unreasonable and found that the plaintiffs had offered only unsupported, conclusory statements that subpoenas were necessary.

Disposition

The court found that the plaintiffs had not shown that their request was reasonable or that good cause supported expedited discovery. Judge Kevin Nathaniel Fox therefore denied the plaintiffs’ motion for expedited discovery, Docket Entry No. 8. The opinion did not resolve whether the alleged reviews were defamatory or determine the defendants’ identities.